III. Minority Language Education Rights
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Doucet-Boudreau v. Nova Scotia (Department of Education) (cont.)
Given the circumstances in the case before it, the Nova Scotia Supreme Court felt that no further significant delays in providing homogeneous French language schools in the five regions in dispute could be tolerated. In the result, five orders were issued requiring that separate, homogeneous minority language schools (to include secondary grade levels in line with the circumstances of each region) be made available no later than dates specified by the judge. The judge also acknowledged that in a number of these regions the government had already taken sufficient steps to ensure that these deadlines could be met without any difficulty.
3. Eligibility Criteria
The right of admission to minority official language instruction and schools is, for the most part, determined by reference to the mother tongue of a child’s mother or father, or by reference to the official language in which a parent received his or her primary education in Canada. This basic right is, however, supplemented by subsection 23(2) of the Charter, which provides that “[c]itizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.” Clearly there are many new Canadians whose mother tongue is neither French nor English and whose primary education took place in the countries from which they emigrated. Subsection 23(2) ensures that the official language in which one of their children is receiving or has received instruction (once settled in Canada) will also be the language of instruction of the rest of the family wherever they subsequently move in Canada, at the option of the parents. Nevertheless, the scope of rights under subsection 23(2) is not limited to cases of relocation from one province to another. The two cases discussed below, one from Ontario and the other from Quebec, aptly illustrate that subsection 23(2) can have purely intraprovincial application.
Abbey v. Essex County Board of Education
The facts of the case from Ontario concern the rather unique circumstances of an English-speaking mother (Susan Abbey) whose children had begun their schooling in the French language.45 Her story begins in 1989 when she applied to enrol her first child in a French language school in the county of Essex operated by a Catholic separate school board. Since her first language learned and the language in which she had received her primary education was English, she had no enforceable right to minority official language education for her children in the province of Ontario. However, provincial law accorded admission committees the discretionary power to admit non-francophone children into programs of French instruction. This authority was exercised in Ms. Abbey’s favour, and her child was lawfully enrolled in the French language school. Provincial law also provided that in such cases the school board to which a parent paid taxes (a Protestant board in Ms. Abbey’s case) was obliged to pay the tuition fees imposed by the board providing the instruction.
When Ms. Abbey moved to the city of London the following year, the local French language school agreed to admit not only the oldest child but two other children of Ms. Abbey into its program, on the basis that she had acquired a right under subsection 23(2) of the Charter to have all her children educated in French. Thus all three children received their instruction in French during the time the family lived in London, 1990 to 1996. On their return to the county of Essex in 1996, the local Protestant school board refused to pay the tuition fees for the attendance of the three Abbey children at a French language school operated by a Catholic board, their admission thereto being contingent upon such payment. The Protestant board took the position that Ms. Abbey had no constitutional rights under section 23 of the Charter and hence her children did not qualify for admission to the French language school.
Legal action undertaken by Ms. Abbey before the Ontario Divisional Court, regarding her rights under subsection 23(2) of the Charter and the duty of the Protestant school board to pay the required tuition fees, was unsuccessful. The Divisional Court took the view that subsection 23(2) should be interpreted in light of the overall purpose of section 23, which was to secure linguistic rights to linguistic minorities. It therefore concluded, using margin notes in support, that subsection 23(2) was meant to provide continuity of education to the children of parents who qualified under subsection 23(1); i.e., by virtue of the mother tongue rule or the rule regarding the language of primary schooling of a parent. Put briefly, since Ms. Abbey was a member of the English-speaking majority community in Ontario she could not claim any rights under section 23.
In overturning the Divisional Court, the Ontario Court of Appeal returned to the plain meaning of subsection 23(2) and found that it recognized a distinct right that was not inconsistent with the underlying purpose of section 23: “Even though the overriding purpose of s. 23 is the protection of the language and culture of the linguistic minority through education, this does not preclude interpreting s. 23(2) according to its plain meaning, even if this means that rights accrue to persons who are not members of the linguistic minority. The more fluency there is in Canada’s official languages, the more opportunity there is for minority language groups to flourish in the community.”46
